MEDIATION - THE BEST PROCESS FOR DIVORCE
Joan G. Geiger
Traditionally, when we speak of rights in the context of divorce, we discuss how much of the marital property each spouse is entitled to, how much support one spouse is entitled to receive and how much time each parent will have with the children. Very little attention is paid to the divorcing couple's rights in terms of the process of divorce. Yet, in fact, the process may be more important than the outcome of any single issue. Unfortunately, most divorcing couples automatically find themselves obtaining a divorce via the legal system. They are unaware that there is a peaceful and much less expensive alternative - mediation. The legal system starts with each spouse retaining an attorney, who by definition is the “adversary” of the other spouse, and whose job it is to “fight” for one spouse against the other. The "fight" begins when one spouse files a “complaint” against the other spouse. Unfortunately, in too many cases, the battle continues. Is it any wonder that at the end of this process, the now divorced couple is adversarial, still fighting, and complaining about each other, the process, and their lawyers?
By contrast, consider what might happen, if, instead, the same couple found a neutral professional to facilitate a “peaceful” process focused on “resolving” their issues in a manner which was “fair” to each of them and their children. What if that process had the added benefit of significantly lower cost? That process is mediation. By definition, at the end of the process, the now uncoupled parties usually feel neutral about each other and at peace with themselves and their issues are resolved. More importantly, their children are also at peace. As an added benefit, they have saved a considerable amount of money. It is a very simple matter. An adversarial process grounded in fighting and complaining breeds adversarialness, fighting and complaining. A neutral, peaceful, process focused on resolution breeds neutral, peaceful resolution.
Of course, there are obstacles. For one, most divorcing couples are unaware that mediation is an alternative. For another, although statistics are unavailable, divorce attorneys probably outnumber mediators by 30 to 1 in most states. In some states it may be difficult to find a mediator with more than a few years experience, since mediation is a new process. Perhaps the major obstacle to mediation is the basic requirement that each spouse be reasonable and fair minded at a time when each probably wants to give in to feelings of anger, hurt, and disappointment.
Unlike litigation, however, mediation is inexpensive. Most mediators
charge by the session and retainers are rarely required. This makes it
palatable for just about any couple to give it a try. A session or
two is often just enough to sufficiently calm otherwise angry and
disputing spouses to the point where they are open to the process.
So if you are thinking of divorce, and concerned about your rights, consider your right to participate in a neutral, fair, peaceful, process. If you do, you will conclude mediation is the best choice!
Joan G. Geiger is an accredited member of the New Jersey Association
of Professional Mediators and has been mediating for approximately 7
years. After practicing family law for 15 years, she followed her
calling to become a full time mediator and co-founder of WIN*WIN
MEDIATION, L.L.C., with locations in Somerset, Middlesex and Hunterdon
counties, New Jersey.